2020 New Mexico Statutes
Chapter 57 - Trade Practices and Regulations
Article 12 - Unfair Trade Practices
Section 57-12-1 - Short title.
Chapter 57, Article 12 NMSA 1978 may be cited as the "Unfair Practices Act".
History: 1953 Comp., § 49-15-1, enacted by Laws 1967, ch. 268, § 1; 2003, ch. 167, § 8; 2003, ch. 168, § 1.
ANNOTATIONSCross references. — For provisions relating to unfair insurance practices, see Chapter 59A, Article 16 NMSA 1978.
The 2003 amendment, effective June 20, 2003, substituted "Chapter 57, Article 12 NMSA 1978" for "This act".
Laws 2003, ch. 167, § 8, effective July 1, 2003, enacted identical amendments to this section. The section was set out as amended by Laws 2003, ch. 168 § 1. See 12-1-8 NMSA 1978.
Application to hospitals. — In an unfair practices claim for medical negligence, the inquiry hinges on whether the medical negligence and the unfair practices claims are coterminous or indistinguishable, that is, whether they rely on the same facts and rely on a judgment as to the actual competence of the medical practitioner for resolution. If they do, an unfair practices claim is not appropriate. If they do not, an unfair practices claim may be viable, depending on the facts. Grassie v. Roswell Hosp. Corp., 2011-NMCA-024, 150 N.M. 283, 258 P.3d 1075, cert. denied, 2011-NMCERT-002.
Where plaintiff claimed damages against a hospital for medical malpractice and unfair practices; the unfair practices claim was based on the hospital's billboard and internet advertising that described the hospital's team of physicians, nurses and technicians and the hospital's emergency room goal to provide 24-hour, seven-day-a-week access to qualified physicians, the resolution of the issue whether the advertising was materially misleading did not rely on the actions of the medical personnel and the unfair practices claim was sufficiently separate from the medical competence of the doctors and nurses to allow the unfair practice claim to proceed. Grassie v. Roswell Hosp. Corp., 2011-NMCA-024, 150 N.M. 283, 258 P.3d 1075, cert. denied, 2011-NMCERT-002.
Authority to determine burial arrangements. — Where a cemetery sold two adjoining burial plots to a husband and wife; in the course of excavating the burial plot for the deceased husband the cemetery discovered the remains of a unidentified body in the wife's burial plot; the wife elected to convert the husband's single burial plot into a double burial plot, the cemetery did not violate the Unfair Practices Act when it sold the burial plots because the cemetery did not knowingly make a misrepresentation of fact that both burial plots were available. Eisert v. Archdiocese of Santa Fe, 2009-NMCA-042, 146 N.M. 179, 207 P.3d 1156, cert. denied, 2009-NMCERT-004, 146 N.M. 641, 213 P.3d 791.
Conflict with federal law. — In action against moving company for fraud, breach of contract, and unfair practices, the specific preclusion of punitive damages under the Carmack Amendment to the Interstate Commerce Act, former 49 U.S.C. § 11707 created a conflict with the Unfair Trade Practices Act (Chapter 57, Article 12 NMSA 1978) and therefore federal law controlled. Margetson v. United Van Lines, 785 F. Supp. 917 (D.N.M. 1991).
Uniform Deceptive Trade Practices Act. — The Unfair Practices Act is modeled after the Uniform Deceptive Trade Practices Act. Stevenson v. Louis Dreyfus Corp., 1991-NMSC-051, 112 N.M. 97, 811 P.2d 1308.
Liberal construction. — Because the Unfair Practices Act constitutes remedial legislation, its provisions are liberally interpreted to facilitate and accomplish its purposes and intent. State ex rel. Stratton v. Gurley Motor Co., 1987-NMCA-063, 105 N.M. 803, 737 P.2d 1180, cert. denied, 105 N.M. 781, 737 P.2d 893.
Remedies not exclusive. — Causes of action may be maintained under both the New Mexico Unfair Trade Practices Act and the New Mexico Unfair Insurance Practices Act. N.M. Life Ins. Guar. Ass'n v. Quinn & Co., 1991-NMSC-036, 111 N.M. 750, 809 P.2d 1278.
Claims must be based on regular course of trade or commerce. — Claims made under the Unfair Practices Act must be based on conduct occurring in defendant's regular course of trade or commerce. Klein v. Bronstein, 39 B.R. 20 (Bankr. D.N.M. 1984).
Conduct complained of must have occurred in the regular course of business. — Where plaintiffs filed a complaint seeking a determination that a debt arising from a prepetition state court default judgment against bankruptcy debtors in connection with their sale of a mobile home to plaintiffs was non-dischargeable, and where the default judgment included an award of treble damages under the New Mexico Unfair Practices Act (UPA), §§ 57-12-1 through § 57-12-26 NMSA 1978, treble damages were not proper because the UPA does not apply to the purchase and sale of the mobile home on which the default judgment was based. The sale was an isolated consumer transaction and one of the requirements of the UPA to apply is that the conduct complained of must have occurred in the regular course of business. In re Crespin, 551 B.R. 886 (2016).
A business has standing under the Unfair Practices Act to sue a competitor for misrepresentation. — A business has standing under the New Mexico Unfair Practices Act to sue a competitor for misrepresentations that damage the business by misleading or confusing the consuming public when the unfair practice occurs in connection with the sale of goods or services. First Nat'l Bancorp Inc. v. Alley, 76 F.Supp.3d 1261 (D.N.M. 2014).
Where it was alleged that defendants, an investment services firm, confused and misled former and potential customers of plaintiff, a competitor investment firm, by using a name confusingly similar to plaintiff's name, by creating a website that was confusingly similar to plaintiff's website, and by making misleading statements to plaintiff's existing or potential customers, denial of defendants' motion to dismiss was appropriate because plaintiff was likely to be damaged and may have suffered monetary losses due to defendants' misrepresentations. First Nat'l Bancorp Inc. v. Alley, 76 F.Supp.3d 1261 (D.N.M. 2014).
Preemption by federal law. — Claim under the New Mexico Unfair Practices Act was preempted by the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. Nechero v. Provident Life & Accident Ins. Co., 795 F. Supp. 374 (D.N.M. 1992).
The Employee Retirement Income Security Act of 1974 (ERISA) did not preempt an insured's pre-plan fraud claims against its insurer. Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985 (10th Cir. 1999).
Claims against Medicare program operator not preempted. — Plaintiffs' claims under the Unfair Practices Act that alleged a "Medicare Plus Choice" program operator disseminated knowingly false and misleading statements and representations to thousands of elderly and disabled beneficiaries regarding rates and benefits in order to induce them to enroll, and that the recipients relied on the statements and misrepresentations to enroll but then saw their benefits unilaterally reduced by the operator, were not preempted either expressly by former 42 U.S.C. § 1396w-26(b)(3)(B) or by the doctrine of conflict preemption. Palmer v. St. Joseph Healthcare P.S.O., Inc., 2003-NMCA-118, 134 N.M. 405, 77 P.3d 560, cert. dismissed, 2004-NMCERT-010, 136 N.M. 542, 101 P.3d 808.
Failure of evidence to support claim. — Where evidence was never presented that a party knowingly made any false or misleading statement of any kind in connection with the negotiation of an oral agreement, the evidence failed to present or support an issue essential to the legal sufficiency of the asserted claim, and the trial court erred when it denied a motion for a directed verdict on an Unfair Practices Act violation claim. Stevenson v. Louis Dreyfus Corp., 1991-NMSC-051, 112 N.M. 97, 811 P.2d 1308; Aetna Fin. Co. v. Gaither, 1994-NMSC-082, 118 N.M. 246, 880 P.2d 857; Parker v. E.I. Du Pont de Nemours & Co., 1995-NMCA-086, 121 N.M. 120, 909 P.2d 1.
Misrepresentation claim was a viable claim. — Where, in January 2006, plaintiff retained defendant to file suit against a high school and a school district under the premises liability provision of the Tort Claims Act; defendant never filed suit within the statute of limitations; plaintiff sued defendant for legal malpractice and misrepresentation; the statute of limitations ran in September 2006; in October 2006, defendant assured plaintiff that the statute of limitations had not run; in August 2007, defendant realized that the case was barred, but did not disclose this fact to plaintiff until the spring of 2008; plaintiff claimed that defendant failed to inform plaintiff that defendant had not done any work on the case; and plaintiff did not allege any damages other than the loss of the underlying suit against the high school and school district, plaintiff could pursue the misrepresentation claim both because plaintiff might have suffered actual damages as a result of defendant's misrepresentations and because fraudulent misrepresentation does not require actual damages. Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, rev'g 2013-NMCA-003, 294 P.3d 1245.
Evidence did not support plaintiff's claim. — Where plaintiff retained defendant to file a tort claim against a school district; defendant failed to file the lawsuit within the statute of limitations; plaintiff sued defendant for violation of the Unfair Practices Act based on allegedly misleading advertisements about defendant's abilities made on a magnet in a phone book and in a television commercial; in the television commercial, defendant was featured as saying "don't accept a quick check until you check with me" and mentioned car accidents; and the phone book magnet had the same language printed on it and listed defendant's areas of practice as "serious injuries, auto accidents, and wrongful death", plaintiff failed to make a prima facie case for a claim under the act. Encinias v. Whitener Law Firm, P.A., 2013-NMCA-003, 294 P.3d 1245, cert. granted, 2012-NMCERT-012, rev'd, 2013-NMSC-045.
Act does not apply. — Several developers' action under the New Mexico Unfair Trade Practices Act, was properly dismissed for failure to state a claim because the developers failed to show that the UTPA applied to opponents of a shopping center. Saylor v. Valles, 2003-NMCA-037, 133 N.M. 432, 63 P.3d 1152.
Dismissal of claim in error. — Where, under the facts pleaded, it is possible that plaintiffs could show that defendant failed to deliver the quality or quantity of goods or services contracted for, dismissal of claim for violation of Unfair Practices Act was in error. Dellaria & Carnes v. Farmers Ins. Exch., 2004-NMCA-132, 136 N.M. 552, 102 P.3d 111.
Whether bank breached its duty under the Unfair Practices Act by failing to disclose a new policy to its customers, and whether that omission was made in bad faith will require proof of whether and when members received notice of the policy. Brooks v. Norwest Corp., 2004-NMCA-134, 136 N.M. 599, 103 P.3d 39, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097.
Law reviews. — For article, "Consumer Class Actions Under the New Mexico Unfair Practices Act," see 4 N.M. L. Rev. 49 (1973).
For note, "State Securities Law: A Valuable Tool for Regulating Investment Land Sales," see 7 N.M. L. Rev. 265 (1977).
For article, "The Impact of the Revised New Mexico Class Action Rules Upon Consumers," see 9 N.M.L. Rev. 263 (1979).
For annual survey of New Mexico insurance law, 19 N.M.L. Rev. 717 (1990).
For annual survey of New Mexico Commercial Law, see 20 N.M.L. Rev. 239 (1990).
For survey of 1990-91 commercial law, see 22 N.M.L. Rev. 661 (1992).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 54A Am. Jur. 2d Monopolies, Restraints of Trade, and Unfair Trade Practices § 1151.
Unfair competition by imitation in sign or design of business place, 86 A.L.R.3d 884.
Liability for interference with at will business relationship, 5 A.L.R.4th 9.
Recovery based on tortfeasor's profits in action for procuring breach of contract, 5 A.L.R.4th 1276.
Liability in tort for interference with physician's contract or relationship with hospital, 7 A.L.R.4th 572.
Failure to deliver ordered merchandise to customer on date promised as unfair or deceptive trade practice, 7 A.L.R.4th 1257.
Implied warranty coverage for service transactions under state consumer protection and deceptive trade statutes, 72 A.L.R.4th 282.
Coverage of insurance transactions under state consumer protection statutes, 77 A.L.R.4th 991.
Coverage of leases under state consumer protection statutes, 89 A.L.R.4th 854.
Constitutional right to jury trial in cause of action under state unfair or deceptive trade practices law, 54 A.L.R.5th 631.
87 C.J.S. Trademarks, Tradenames and Unfair Competition § 237 et seq.
